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Geiger, Christophe --- "Exploring the Flexibilities of the TRIPS Agreement’s Provisions on Limitations and Exceptions" [2011] ELECD 455; in Kur, Annette; Mizaras, Vytautas (eds), "The Structure of Intellectual Property Law" (Edward Elgar Publishing, 2011)

Book Title: The Structure of Intellectual Property Law

Editor(s): Kur, Annette; Mizaras, Vytautas

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448766

Section: Chapter 13

Section Title: Exploring the Flexibilities of the TRIPS Agreement’s Provisions on Limitations and Exceptions

Author(s): Geiger, Christophe

Number of pages: 21

Extract:

13. Exploring the flexibilities of the
TRIPS Agreement's provisions on
limitations and exceptions
Christophe Geiger*

1. INTRODUCTION

Important concerns have been expressed in recent times about the
Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) and it has become obvious that many scholars seem not to be
satisfied with its provisions.1 More then ten years have passed since the
adoption of this international convention and one can presume that it is
unlikely that this agreement would be signed if it were presented today to
the member states of the WTO. Anyhow, this agreement has been adopted
and member states are now bound by it. However, the TRIPS Agreement,
despite having many unsatisfying provisions, has one major advantage:
some provisions are vague, unclear, and their exact scope is often hard to
understand. This can be an advantage because when legal provisions are
unclear, judges or scholars have to give them a meaning, to propose inter-
pretations. This allows the IP community to have a certain influence where
provisions of the TRIPS Agreement offer some flexibility,2 by `rethink-


* Associate Professor and Director of the Centre for International Intellectual
Property Studies (CEIPI), University of Strasbourg; Senior Researcher, Max
Planck Institute for Intellectual Property and Competition Law, Munich.
1 Critical literature on the TRIPS Agreement is too abundant to be quoted

extensively. See e.g. Vaver, D. and Basheer, S. (2006), `Popping Patented Pills:
Europe and A Decade's Dose of TRIPs', EIPR, p. 282; Malbon, J. and Lawson,
...